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2019 (4) TMI 237

ion agents to J&K based units and absence of evidence by the appellant - Held that:- The appellant had shown from the records that there was periodical checks conducted by the jurisdictional Central Excise officers, who found that the suppliers are manufacturers of the goods and we also take note of the fact that the suppliers has obtained necessary permission from the Directorate of Industries to manufacture the goods and necessary permission from the Pollution Control Board and moreover during the period, the suppliers are selling the goods and it was found that there was movement of goods inward/outward. - The suppliers are manufacture of goods and have cleared the same on payment of duty, in that circumstances, the cenvat credit availed by the appellant cannot be denied - the appellant have correctly availed the cenvat credit on the goods supplied by their suppliers located in the state of Jammu & Kashmir - appeal allowed - decided in favor of appellant. - Appeal Nos. E/60590/2016, E/60631/2016 - FINAL ORDER No.60338-60339 - 1-4-2019 - Mr. ASHOK JINDAL, MEMBER (JINDAL) And Mr. C L MAHAR, MEMBER (TECHNICAL) Shri Anurag Mishra, Ms. Trapti Gupta, Advocates for the Appellant Sh .....

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the records that there was periodical checks conducted by the jurisdictional Central Excise officers, who found that the suppliers are manufacturers of the goods and we also take note of the fact that the suppliers has obtained necessary permission from the Directorate of Industries to manufacture the goods and necessary permission from the Pollution Control Board and moreover during the period, the suppliers are selling the goods and it was found that there was movement of goods inward/outward. 5. We also take note of the fact that this Tribunal in para 12 and 13 of the order in the case of S.B. Aromatics (supra) has observed as under:- 11. We find that in this case the sole allegation against the appellant is based on the investigation conducted by Commissioner of Central Excise, Meerut, and as per the investigation, it is alleged that farmers from whom the inputs were purchased were non-existence. Therefore, commission agents never supplied inputs to the appellant and the appellant did not manufacture the goods. Consequently, they have not sold the goods and it was alleged that the appellant has not manufactured the goods at all. 12. We further take note of the fact that, the i .....

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oducts w.e.f 27.02.2010. Thus, the investigation may not be in tune with the investigations conducted by the Central Excise Commissionerate Merrut-II. 13. We further take of the fact that the similar issue on identical facts came up before this Tribunal in the case of Nanda Mint and Pine Chemicals Ltd. vide Final Order No. 63177 / 2018 dated 28.08.2018, wherein this Tribunal observed as under: 6. We find that in this case the sole allegation against the appellant is based on the investigation made by Commissioner of Central Excise, Merrut, and as per the investigation, it is alleged that farmers from whom the inputs were purchased were non-existence. Therefore, commission agents never supplied inputs to the appellant and the appellant did not manufacture the goods. Consequently, they have not sold the goods and it was alleged that the appellant has not manufactured the goods at all. 7. We take a note of the fact that the check post movement of trucks which were carrying inputs as well as finished goods were found entered. We further take note of the fact that the appellant has produced the evidence of the entry of all the transport vehicles i.e. trucks which have entered in the sta .....

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e of units have closed their factories due to withdrawal of Central Excise Duty on all Mentha products w.e.f 27.02.2010. Thus, the investigation may not be in tune with the investigations conducted by the Central Excise Commissionerate Merrut-II. 9. The said report also support the case of the appellant wherein it has been clearly mentioned that during the periodical checks by the departmental officers, the appellant found manufacturing the goods. Moreover, no discrepancy was found and on toll barriers it was found that the vehicles carried inputs/finished goods found entered. Moreover, the District Centre also certified the said fact. 10. We further take note of the fact that the various other departments namely Pollution Control Department, District Industries Department, Electrical Department have visited the factory of the appellant and found functioning. All these facts have not been disputed by the Revenue. As there is no corroborative evidence to show that the appellant were not manufacturing the goods, therefore, the allegation alleged in the show cause notice is not sustainable. 11. We further take note of the fact that on the basis of the same investigation conducted by t .....

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ess going on was evidence by them and such evidences being on record and submitted by the appellant it was the duty of the Original Authority to accept them and not to discard by saying that the Officers have not seen the goods being manufactured by their own eyes. Further, the receipt of inputs was verified by the Officers of Central Excise Department and sample of the same were also drawn and forwarded for Chemical Examination. Such evidence was also not accepted by the Original Authority, Therefore, it appears that the Original Authority was pre-determined to adjudicate the matter in the manner in which he has decided the issue and he was not just and fair and did not discharge his duty as an independent adjudicator. We, therefore, set aside both the impugned Orders-in-Original dated 29/01/2010 & 29/03/2011 and allow all the appeals filed by appellant. The appellant shall be entitled for consequential relief. All the demand and penalties imposed are also set aside. All the Miscellaneous/Stay Applications stand disposed, as infructuous. 12. In view of the above observations, we hold that without bringing any concrete evidence against the appellant on record, the proceedings a .....

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